Cowell v. State, 1173S227

• Decision Date: 15 July 1975
• Docket Number: No. 1173S227,1173S227
• Citation: 331 N.E.2d 21,263 Ind. 344
• Parties: William L. COWELL, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 21

331 N.E.2d 21

263 Ind. 344

William L. COWELL, Appellant, v. STATE of Indiana, Appellee.

No. 1173S227.

Supreme Court of Indiana.

July 15, 1975.

J. Michael Katz, Merrillville, for appellant.

Theodore L. Sendak, Atty. Gen., John E. Meyer, Deputy Atty. Gen., for appellee.

ARTERBURN, Justice.

A jury convicted Defendant of First Degree Murder. He appeals. On the night of August 23, 1972, Defendant drove to the home of William Siebert, Jr. and shot that man twice in the head with .38 caliber bullets the tips of which had been cut off by Defendant in order to cause them 'to penetrate or something.' Defendant was apprehended on September 1, 1972.

Defendant admitted the killing to two people who so testified at trial. He confessed to the Lake County Police. A signed written confession and a signed waiver of Miranda rights were admitted into evidence.

Defendant's first allegation is that State's Exhibits 2 through 10, which are photographs of the dead man at the scene of the killing, were admitted into evidence although their only function was to inflame and prejudice the jury. All of these photographs were corroborative of oral testimony. It is well-settled that such pictures are admissible notwithstanding elements of repetition and unpleasantness. Hubbard v. State, (1974) Ind., 313 N.E.2d 346; Leaver v. State, (1968) 250 Ind. 523, 237 N.E.2d 368; Kiefer v. State, (1958) 239 Ind. 103, 153 N.E.2d 899. As it has been said:

'Murder by its very nature, is a gruesome 'business.' One who takes the life of another human being cannot, with propriety, object to the full exposure of the wounds which he inflicted upon the body of his victim, merely because such evidence may tend to inflame the jury.'

Marshall v. State, (1962) 242 Ind. 606, 610, 180 N.E.2d 233, 235 (concurring opinion).

Defendant postulates the denial of a request for a continuance as a ground for a new trial. Defendant was arrested September 1, 1972; on November 22, 1972, the trial court, after examining written reports of two psychiatrists, found that Defendant did not have sufficient mental competency to stand trial. On January 13, 1973, Defendant was found by the trial court to have such competency. Trial was eventually set for April 23, 1973. Two physicians were appointed by the court to examine the Defendant who had pleaded not guilty by reason of insanity. IC 1971, 35--5--2--1 et seq. (Burns' Ind.Stat.Ann. § 9--1701 et seq. (1974 Supp.)). On April 16, 1973, seven days prior to trial and nearly six months after arrest, Defendant filed the following motion for a two weeks' continuance for the purposes of securing a mental examination of the defendant by a specified doctor and thereupon obtaining the testimony of this doctor at trial:

'AFFIDAVIT FOR CONTINUANCE

DONALD P. LEVINSON, being first duly sworn and upon his oath, deposes and says:

1. That this cause has been duly scheduled for trial by jury on the 23rd day of April 1973.

2. That an agreement was entered into between Terrance Smith, Deputy Prosecuting Attorney for the State of Indiana, and Max Cohen, Attorney for the defendant, that said trial would go forth on the abovementioned date and that upon receipt of statements of all witnesses for the State, counsel for the defendant would forego any further discovery herein.

3. Affiant herein is informed and verily believes that said agreement was contingent upon the fact that each side would be able to have its witnesses present on the above date; however, counsel for defendant has recently discovered that it will be unable to present one of its witnesses, namely, Myron E. Berkson, M.D.

4. That the defendant herein has filed a special plea of insanity and anticipated the use of Myron E. Berkson, M.D., who is a psychiatrist practicing psychiatric medicine in Michigan City, Indiana; counsel for the defendant has recently discovered that said Dr. Berkson has been out of the jurisdiction of the Court since April 2, 1973, and will remain outside of the jurisdiction until April 19, 1973, and it has, therefore, become impossible to have Dr. Berkson examine the defendant herein for any psychiatric disorder prior to trial.

5. That a two week delay and continuance in this cause should be sufficient to secure an examination of the defendant herein; and no further delays are anticipated barring unforeseen catastrophe.

WHEREFORE, defendant, by counsel, respectfully requests a continuance of two (2) weeks herein in order to secure examination and testimony of Dr. Myron E. Berkson and for all relief otherwise just and proper in the premises.'

Continuances for the purposes indicated by the above motion are regulated by IC 1971, 35--1--26--1 (Burns' Ind.Stat.Ann. § 9--1401 (1956 Repl.)) which says, in pertinent part, that:

'A motion by the defendant to postpone the trial on account of the absence of evidence can be made only on affidavit showing materiality of the evidence expected to be obtained, and that due diligence has been used to obtain it, and where the evidence may be; and if the postponement be asked on account of an absent witness, the affidavit must show the name and residence of the witness, if known, and the probability of procuring his testimony within a reasonable time. The affidavit must further show that the absence of such witness has not been procured by the act or connivance of the defendant, nor by others at his request, nor with his knowledge and consent, and what facts he believes the witness will testify to, and that he believes them to be true, and that he is unable to prove such facts by any other witness whose testimony can be as readily procured.'

It can readily be discerned that the motion failed in numerous ways to meet the requirements of the statute. (1) There is no statement of what evidence is expected to be obtained. If it is said that implicit in the motion is the idea that the evidence to be obtained is testimony that Defendant was insane at the time of the crime, then there is a failure to allege due diligence in attempting to discover such evidence. (2) There is no affidavit that the absence of the witness had not been procured by the defendant. (3) There is no affidavit that the defendant believes that what the witness would testify to is in fact true. (4) There is no affidavit that no other witness could testify as would the missing witness. For all of these deficiencies the trial court correctly denied the motion for continuance. It is to be noted that the defendant was examined by two physicians in regard to his plea of not guilty by reason of insanity. Further, Defendant had nearly six months to secure the examination by the doctor of his choice. As we said, if this doctor was to give unique evidence the statute requires that such be alleged and that due diligence in...